Spaulding v. White

50 N.E. 224, 173 Ill. 127

• Court: Illinois Supreme Court
• Decided: April 21, 1898
• Status: Published

Opinion

Mr. Chief Justice Phillips

delivered the opinion of the court:

On March 24,1894, Hugh A. White, a brother of Louisa Spaulding, died, leaving a last will and testament, by which he devised real and personal property to Catherine M. White, his widow. That will was probated March 29, 1894. At the March term, 1897, of the circuit court of Cook county, Louisa Spaulding, alleging that she was the heir of Hugh A. White, filed in the circuit court of Cook county a bill to set aside the will on the ground of mental incapacity on the part of the testator. A demurrer was interposed on the ground that the bill was filed more than two years after the probate of the will, and the court had no jurisdiction to entertain the same. The contention of the plaintiff in error was that the bill was filed within three years after the time the will was probated, which was the time fixed by the statute when the will was so admitted to probate.

By section 7 of “An act in regard to wills,” approved March 20,1872, it was provided that when any will, testament or codicil shall be exhibited in the county court for probate, it shall be the duty of the court to receive the probate of the same without delay and grant letters, etc., and make settlement of the estate, “provided, however, that if any person interested shall, within three years after the probate of any such will, testament or codicil in the county court, as aforesaid, appear, and by his or her bill in chancery contest the validity of the same, an issue at law shall be made up whether the writing produced be the will of the testator or testatrix or not.” By an amendment made in 1895 the time within which any person interested might appear and by his or her bill in chancery contest the validity of the will was reduced from three to two years. The will herein having' been probated on the 29th of March, 1894, and the bill having been filed in March, 1897, the question is whether the amendatory act of 1895 applies.

There is a material distinction between a statute conferring jurisdiction and fixing a time within which it may be exercised, and a statute of limitations. The seventh section, as it stood before this amendment, conferred jurisdiction on a court of chancery to entertain a bill to contest a will. The act as it stood prior to the amendment gave no vested right to any one interested, who desired to contest a will, to have the full term so fixed within which a court should entertain jurisdiction. By the general jurisdiction of courts of equity a bill will not lie to set aside a will or its probate independently of statutes enacted conferring such jurisdiction. The power to entertain a bill for that purpose is derived exclusively from the statute, and the jurisdiction can be exercised only in the manner and under the limitations prescribed by the statute. The time within which such bill may be filed under the statute by any person interested is not a limitation law. (Luther v. Luther, 122 Ill. 558; Wheeler v. Wheeler, 134 id. 522; Jele v. Lemberger, 163 id. 338.) The statute in force at the time of the filing of the bill is the statute which confers jurisdiction on the court to entertain a bill to contest the validity of the will, and must govern.

But even if this amendatory act could be regarded as purely a limitation act, it could not avail the plaintiff in error in this contention. The will having been probated March 29, 1894, and the act amending section 7 of the Statute of Wills being approved April 11, 1895, and in effect July 1, 1895, the plaintiff in error had the time from July 1,1895, to March 29, 1896,—a period of about nine months,—within which to file her bill. Under any circumstances that would, be reg'arded as a reasonable time within which such bill should be filed. Where a statute of limitations limiting the time within which an act may be done is modified by changing the time, if such change still gives a reasonable time for the performance of the act, taking away no vested right, it is a valid law. Ryhiner v. Frank, 105 Ill. 326.

The court had no jurisdiction to entertain this bill, and it was not error to sustain the demurrer and dismiss the bill for Avant of equity. The judgment of the circuit court of Cook county is affirmed.

Judgment affirmed,.